updated 9 Aug 2011, 16:10
user id password
Tue, Mar 08, 2011
China Daily
Email Print Decrease text size Increase text size
When home is a battleground
by Cao Li

Li Ming is bitter. First, her five-year marriage ended - she's convinced her husband had affairs - and now she's in a legal battle for the apartment they lived in."He's reluctant to share a single tile with me," said Li, a Shanghai native. She believes she co-owns the apartment, which is registered in her husband's name.

A wife's property rights are a greater issue than ever in China as the divorce rate rises. Last year, 1.96 million couples applied for divorce, a 14.5-percent increase from 2009. The average annual increase since 2003 is 7.6 percent.

Legislators are walking a tightrope to protect, but not overprotect, women in marital property rights. Overprotection in legislation could lead to gender inequality and even to opportunism by women who want to marry rich men, several divorce lawyers said.

Under current divorce law, husbands and wives each get half of the marital assets unless one is proven to have acted in a way that violated the marriage - specifically, through bigamy, domestic violence, abandoning the family or living with a lover for three months or longer. The law calls these transgressions "faults".

Now the Supreme Court is addressing pre-marriage assets, particularly property such as a house, in a draft interpretation of the Marriage Law. The draft was issued in November, soliciting public opinion, in part to resolve a wide national disparity in rulings on similar cases.

The draft says that a person has sole ownership of a pre-marriage asset, including its appreciated value, unless his or her partner proves contribution. Whether that contribution includes intangibles, such as the value of child-rearing, is up to the judge hearing a divorce case.

Some experts complain that legislators are not doing enough to protect women - and in most cases it is the woman at risk - who could be left homeless under the draft. The fundamental difficulty for the wife lies in her inability to provide evidence of her husband's misconduct.

In practice, lawyers said, asset division in most divorce cases is fair to women, sometimes favoring them. The key issue is whether husbands and wives should be treated the same in legislation about asset division.

They should not be, said Jiang Yue, a law professor specializing in marriage law at Xiamen University in Fujian province.

"Wives are often financially disadvantaged. It is not because they are not capable," she said. "It is because they sacrifice themselves for the household work and family. As they are not in an equal position, treating them the same means unequal."

In a traditional Chinese marriage, the husband buys a house and the wife spends her life looking after it, and the old and the little members of the family, and supporting her husband's career.

How do you prove it?

Li Mingshun, a law professor at China Women's University in Beijing, said women should be compensated better in a divorce. But there's the matter of evidence.

"It is not possible for me to prove his adultery," said Li Ming, who said that a year ago she accidentally saw her husband's text messages inviting women to spend the night with him. "He denied everything. And how can I obtain evidence of him in bed with his lovers?"

In cases of infidelity, "You have to not only prove they were living together but also prove they were living together for three months. It is really difficult," said Song Jian, a divorce lawyer with Beijing King and Bond Law Firm. "And sometimes, it's just a one-night-stand, which is not counted as a fault but is quite popular."

Song said about 70 percent of couples divorce because of affairs. "Mostly it is the man."

Typically, he said, the husband handles the family finances and can hide or transfer marital assets before or during a divorce. The law doesn't punish that, Song said.

Li accused her husband of trying to move their assets to a secret account to avoid splitting them with her. "I asked the courthouse to check his bank accounts and found out that he started transferring his income to other accounts soon after we got married," she said.

"But the judge has only given him a warning, threatening to inform his employer if he continues to do that," Li said.

Bemoaning the loss

The men aren't always in control. Sometimes they need evidence, too.

Tang Jian'an, a Shanghai divorce lawyer at M&A Law Firm, has seen a few cases in which the wife hid the marital assets. "In Shanghai, women are money-savvy and take control of home finances," he said. And an increasing number of men are complaining about their financial losses in divorce. Lawyer Song mentioned one client, a Beijing man who divorced his wife from northeastern China. As they stepped out of the courtroom, he told Song that he would never again marry a penniless woman.

The man, a senior manager in a media company, believed the woman had married him for his house. He earned roughly 20,000 yuan ($3,050) a month and said he worked very hard to obtain the property. He lost more than 1 million yuan in the divorce.

Gender equity

Sixty years after China's first Marriage Law, which for the first time raised the issue of gender equality, the social status of women has improved dramatically.

Women are confident, independent and in some aspects doing better than men, law professionals said. "Overprotection can only lead to gender inequality," said Jia Mingjun with Whole Guard Law Firm based in Shanghai.

"Men make no less contribution to a family than women. While women look after children and seniors at home, men are out drinking with business partners for the family. It is not easy, either."

Some women have taken the initiative to protect themselves before marriage.

"Many women in Shanghai are asking their boyfriends to add their names to property before they get married," Tang said. Women are more financially independent, he said, and in some cases are richer than their husbands.

Jiang Yue argues that sex discrimination still exists and divorced women have fewer opportunities to remarry than men. "That loss should be taken into consideration too," she said. "As we advocate the right to divorce, we should also protect the right not to divorce."

Jiang said some of her female clients ended up living a miserable life after their husbands divorced them at age 50 or 60. She suggested that in extreme cases, when a wife has sacrificed her whole life for the man, the divorce should be rejected.

"They have dedicated most of their lives to the family. When it is time to share the fruit of the husband's success, they are divorced," Jiang said. "Without the wife's support, the husband could not have achieved the success. And the older the man is the better his career will be."

Jiang said that the division of marital assets also should include a husband's projected income after divorce. That would apply, for example, when the wife supported the family while the husband attended college overseas.

Some women say they don't see the need for special protection: They take equal responsibilities including household work, and they are capable of protecting themselves.

"Nothing is reliable, not your life, not your marriage," said An Jian, a 30-year-old who had a prenuptial agreement with her boyfriend before they were married in 2007. "It is better to make it clear in case anything happens in the future."

The agreement states clearly the percentage the two contributed respectively to buy the 2 million-yuan apartment where they live now. An paid for 70 percent of it.

readers' comments

Copyright © 2011 Singapore Press Holdings Ltd. Co. Regn. No. 198402868E. All rights reserved.